576 N.E.2d 814 | Ohio Ct. App. | 1990
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *500 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *501 In this appeal we are asked to determine whether the trial court erred in its conclusion of law that an ordinance of the Germantown City Council was properly enacted as an "emergency ordinance" and that assessments may be imposed on real property through that procedure. Relators-appellants, Kenneth F. Emrick et al., are owners of property burdened by the assessments, and they argue that the emergency ordinance is invalid. The trial court granted summary judgment in favor of the city council. We find that the trial court erred in its conclusion that the "emergency ordinance" met the requirements for such measures imposed by the Revised Code and the Germantown Charter. The summary judgment will be set aside and appropriate relief entered for relators-appellants.
"* * * [T]his ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety, and welfare, for the urgent benefit or protection of the inhabitants of the City of Germantown, and for the reason that immediate action is required for the timely and efficient construction of the improvements hereinabove described, and shall take effect immediately upon its passage, pursuant to Section 2.05 of the Charter of the City of Germantown."
Section 2.05 of the city charter, entitled "Emergency Ordinances," provides as follows:
"To meet a public emergency affecting life, health, property, or the public peace, the Council may adopt one (1) or more emergency ordinances, but such ordinances may not levy taxes,
grant, renew, or extend a franchise, zone land, regulate the rate charged by any public utility for its services, or authorize the borrowing of money, except as provided in subsection
Following adoption of the ordinance, owners of property along Market Street on which the assessments would be imposed circulated a petition to compel a referendum concerning city council's action. The property owners obtained the requisite numbers of electors' signatures and presented the petition to Angela Wasson, the city clerk, for verification of the petition. Wasson found the petition invalid because the challenged ordinance was an emergency ordinance which took effect immediately and thus was exempt from referendum according to Section
The property owners brought this action against the clerk, mayor and members of the city council, and the city of Germantown, requesting mandamus or alternative relief. The requested mandamus would require the clerk and council to accept the referendum petitions and submit the question of approval or rejection of the ordinance at an election. Alternative relief in the form of restraint or injunction against further action by the city, a declaration that the ordinance is invalid, or other appropriate relief, was also requested. The city and other adverse parties requested dismissal of the complaint.
Both parties filed motions for summary judgment. The trial court found no genuine issue of material fact, and neither party challenged that finding. The trial court concluded that the ordinance was a validly enacted emergency ordinance. The court also concluded that the ordinance did not enact a tax, a matter available through regular ordinance only, and that the emergency ordinance should not be set aside for that reason. The court then found that the property owners were not entitled to the relief requested and entered summary judgment for the city and its co-parties.
Appellants have filed a timely notice of appeal and have presented two assignments of error.
"The trial court erred in finding that Ordinance No. 88-31 qualifies as an emergency ordinance pursuant to O.R.C.
The right of the people to challenge the actions of municipal governments by referendum is secured by Section
"The initiative and referendum powers are hereby reserved tothe people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action * * *." (Emphasis added.)
This constitutional guarantee is "an invaluable arm of the democratic process" in that it facilitates popular participation in the decisions of municipal governments. Walsh v. CincinnatiCity Council (1977),
Section 1f, Article II does not, however, apply to emergency measures. State, ex rel. Fostoria, v. King (1950),
By declaring an act an emergency measure a municipal legislature effectively insulates the results of its decision from immediate and specific electoral scrutiny, scrutiny normally guaranteed by Section 1f, Article II. Although the duty and responsibility for determining an emergency is vested solely in the municipal legislature, and thus beyond our consideration, see Jurcisin v. Cuyahoga Cty. Bd. of Elections (1988),
Our role is not to secondguess the municipal legislature's determination that an emergency exists. Rather, our role is to secure conscientious compliance with the process mandated for enacting emergency measures. The focus of our examination is whether the municipal legislature complied fully with state lawand the provisions of its own charter. Only in this way can we be sure that a municipal legislature provided the public with important information about the circumstances leading to the emergency measure. Such information may be highly pertinent in future decisions at the ballot box.
Before a municipal government can enact an emergency measure, it must state the reasons for that measure. As R.C.
"* * * [E]mergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must * * * receive a two-thirds vote of all the members elected to the legislative authority,and the reasons for such necessity shall be set forth in onesection of the ordinance or other measure." (Emphasis added.)
R.C.
"* * * [I]t is essential to the validity of such measures as emergency measures that the mandatory requirements specified be adhered to and followed, among which is that `the reasons for such necessity shall be set forth in one section of the ordinance or other measure.' Although the finding of the emergency character of the proposed legislation and the determination of the legislative body as to the necessity that such legislation go into immediate effect and the reasons announced therefor are not subject to review by the courts,it is mandatory that the legislative body must consider,determine and announce the reasons for such necessity and thatthe same be set forth in one section of the ordinance or othermeasure." (Emphasis added.) *505
See, also, Walsh, supra; State, ex rel. Johns, v. Bruss
(1955),
Municipal legislatures have a three-part obligation to consider, determine and announce the reasons for an emergency.Aiello, supra; Moscow, supra. A clear explanation fulfills two important objectives. First, it demonstrates to the public that the legislature weighed fully the nature of the emergency before enacting a remedial measure. Second, it provides the public with relevant information. Consequently, purely conclusory, tautological, or illusory language in an emergency measure does not comport with the prerequisites of R.C.
Section 2.05 of the Germantown City Charter mirrors and amplifies R.C.
Examining ordinance No. 88-31, we find no clear and specific explanation why the emergency measure was necessary to carry out the improvements along Market Street. The ordinance declares that an emergency exists. It then goes on to announce the reason for the ordinance, that being, that "immediate action is required for the timely and efficient construction of the improvements." But why? Nothing in the ordinance explains why immediate action is necessary, nor is there any indication why these improvements are needed for the "urgent benefit or protection of the inhabitants of * * * Germantown." The considerations set out in the text of ordinance No. 88-31 are conclusory rather than explanatory or informative. They fail to meet the burden imposed by the combined effect of the city charter and R.C.
While we may not quarrel with Germantown City Council's determination that an emergency exists, see Jurcisin, supra, we must insist that it conscientiously follow the provisions of its city charter and announce in clear and specific terms the nature of the emergency and the necessity of the action taken. SeeAiello, supra. Cf. Goodman, supra, at 702 (emergency ordinances *506
must be adopted "in strict compliance" with relevant enacting provisions). (Emphasis added.) Both R.C.
Relators-appellants' first assignment of error is sustained.
"The trial court erred in finding that the proposed assessments are not taxes as set forth in Section 2.05 of the charter of the municipality of Germantown prohibiting the levying of taxes by emergency legislation."
The essence of the property owners' second argument is that the city charter prohibition against levying taxes through enactment of an emergency measure includes a prohibition against levying assessments through a similar process. The property owners contend there is no meaningful legal distinction between the two concepts because "an assessment is doubtless a tax * * *." (Relators'-appellants' brief, at 5, citing Black's Law Dictionary.) Therefore, what is prohibited concerning taxes is equally prohibited concerning assessments. We disagree with this reasoning.
Although "tax" and "assessment" are similar concepts in that they are government imposed financial burdens for a public or quasi-public purpose, Ohio maintains a functional distinction between the two. A tax is a burden levied on citizens for the general operation of the government. By contrast, an assessment is a narrower burden levied on specific property owners to cover the cost of benefits bestowed on the property by public improvements. As stated in Lima v. Cemetery Association (1884),
"In a general sense, a tax is an assessment, and an assessment is a tax; but there is a well-recognized distinctionbetween them, an assessment being confined to local impositionsupon property for the payment of the cost of public improvementsin its immediate vicinity, and levied with reference to special benefits to the property assessed." (Emphasis added.)
See, also, State, ex rel. Leipsic, v. Moenter (1918),
Further, two sections of the city charter use the term assessment in contradistinction to the term "tax." In Section
While the question is close because of the ambiguity surrounding the definition of assessment vis-a-vis tax, we nevertheless find that the city charter prohibits levying taxes by an emergency ordinance but not assessments. Where an ambiguity exists concerning the definition and application of terms in a city charter, we will defer to a city council's interpretation and application of those terms. Here, council clearly viewed assessment as distinct from tax. We will defer to council's interpretation absent evidence that this view is clearly erroneous.
We overrule relators-appellants' second assignment of error.
The decision and final judgment entry of the trial court entering judgment in favor of respondents-appellees is reversed and vacated.
Even though not appealable at the time the order is entered, error in denying a motion for summary judgment is reviewable on appeal when a final judgment adverse to the movant is entered in the case. Balson v. Dodds *508
(1980),
Having concluded that emergency ordinance No. 88-31 is invalid for the reasons in our foregoing opinion, we reverse the judgment and decision of the trial court denying the motion for summary judgment of relators-appellants and enter judgment in favor of the movants. We further find that relators-appellants are entitled to relief as prayed in their complaint and appropriate to our findings and determinations.
It is therefore, ordered that respondents-appellees are restrained and enjoined from imposing or collecting assessments for the maintenance or improvement of real property upon the authority of Ordinance No. 88-31 of the city of Germantown.
Judgment accordingly.
FAIN, J., concurs.
WILSON, J., dissents.
Dissenting Opinion
I agree with the majority's analysis of the difference between taxes and assessments. I further agree that Germantown's charter prohibits the levying of taxes by emergency legislation but not assessments.
However, in my view, we are required to defer to the Germantown City Council's determination that there was a need for the ordinance to go into immediate effect. Jurcisin v.Cuyahoga Cty. Bd. of Elections (1988),
I would affirm. *509